APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Brodie Lord Wheatley	[2013] HCJAC 18 XC249/12   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   NOTE OF APPEAL AGAINST CONVICTION   by   DAVID GILROY   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

 

Appellant: J Scott, QC (sol adv); Wardlaw Stephenson Allan

Respondent: Prentice, QC, AD; the Crown Agent

 

20 December 2012

General
[1] On 15 March 2012, at the High Court in Edinburgh, the appellant was found guilty of the murder of Suzanne Pilley on 4 May 2010 at Thistle Street or elsewhere by means unknown. He was also found guilty of thereafter concealing her body within 11 Thistle Street and in the boot of his car, which he used to transport the body to somewhere in Scotland. He was sentenced to life imprisonment with a punishment part of 18 years.

 

The Evidence against the appellant

[2] The deceased was a 38 year old book-keeper with IML at 11 Thistle Street. She lived in a flat in Saughton. The appellant became the regional operations manager of IML in late 2008. He was aged 47, married with two children and normally lived with his family in Silverknowes. In 2009 the appellant began a sexual relationship with the deceased and, after his wife had discovered the relationship, at times moved into her flat for short periods. The relationship was turbulent. The appellant was very jealous of the deceased. He checked her e-mails. In April 2010 the deceased wanted to break off the relationship. She had met another man (MB). However, the appellant continued to meet the deceased and sent her a very large number of text messages, and spoke to her on the telephone, in the weeks and days before her disappearance.

[3] On Friday 30 April, the deceased told a female friend (GH) that she thought that she had "got through" to the appellant and that the relationship was at an end. In a text sent to MB on Monday, 3 May, the deceased wrote that: "at least if anything I managed to drum through to David that its (sic) over and to leave me alone". She spent that night with MB at his flat. He took her back to her own flat at about 7.20 am on Tuesday, 4 May. At 8.36 am, she sent a text message to her mother which carried an optimistic air regarding her relationship with MB. She caught a bus to work. She paused to buy a snack at Sainsbury's on the corner of St Andrew Square and Rose Street before making her way to Thistle Street, where she arrived at 8.53 am. She was last captured on CCTV within a few feet of the ground floor entrance to 11 Thistle Street. However, she did not reach the IML office on the second floor and was never seen or heard of again. No texts were sent to her by the appellant after this time.

[4] The appellant had arrived in Thistle Street at 8.36 am on 4 May. He logged onto his computer at 8.40. Between 9.15 and 9.20 he was observed in the area of a photocopier at the end of the open plan office near the back stairs, which led down to the basement. According to some, but by no means all, of his work colleagues, he appeared clammy and sweaty as if he had been rushing around. He did not look his normal self and seemed to be in shock. His eyes were glazed and the pupils dilated. In due course, the jury would be asked to infer that, between 8.53 and 9.15, the appellant had met the deceased in the vicinity of the front door of 11 Thistle Street, spirited her down to the basement and murdered her.

[5] Later that morning, the appellant excused himself from the office, stating that he was going home to retrieve a set of minutes. He took a taxi to his mother's house in West Pilton and she ran him to his own house, where he picked up his car and returned to Thistle Street. IML had basement car parking there, which was accessed from the lane behind Thistle Street. The appellant paid a number of visits to the basement garage in the course of the day. Again, in due course, the jury would be asked to infer that, after killing the deceased, the appellant had placed her body in a recessed area of the basement and later collected the body and put it in his car at some point before going home that evening.

[6] The deceased's work colleagues became concerned at her uncharacteristic and unscheduled non-appearance at work. They telephoned her parents at about 12.45 pm. Having been unable to trace the deceased at her flat, or to find any indication that she had intended to depart suddenly, her parents reported her to the police as missing at about 8 pm on the evening of 4 May. Her parents had noted that the deceased had made no arrangements for her cat. She had left money and her passport in her flat.

[7] At this early stage, the police were not unduly concerned, given the appellant's age and lack of vulnerability. Hospitals and prisons were checked, but not much else. In the morning, the inquiry was graded "low". At about 12 noon on Wednesday, 5 May, two uniformed constables visited her flat and made local enquiries. They learned of the relationship between the deceased and the appellant and called at IML's office. The staff provided general information on the deceased's personality. The police were told that the appellant had left the office unexpectedly that day, apparently after hearing of the police enquiry.

[8] Later that day (Wednesday), staff at IML gave the police further information about the relationship between the appellant and the deceased as revealed in e-mails exchanged between them. The police decided that they wished to speak to the appellant. They left voice messages on his mobile, asking him to contact them. At about 4 pm, after a change of shift, a different uniformed police constable visited IML and took certain statements. IML staff told him that they were unsure of where the appellant had gone. However, at this point, the appellant had coincidentally telephoned IML and was put onto the police. He told them that he had left the office at about 11.30 am to go on a pitch inspection at a school in Lochgilphead, which was part of an IML project. He said that IML staff knew that he was there but none of his work colleagues recalled being told of this impending journey. The appellant said that he had last seen the deceased on the morning of Monday, 3 May. Since, at that time, this placed him as being potentially the last person known to have seen the deceased, the appellant was asked to call at Corstorphine police station. He said he would be back at about 9.30 pm, although he only arrived at the police station more than two hours later, after the police had followed up their call.

[9] In due course, various CCTV recordings of the appellant's car en route to Lochgilphead revealed that the appellant had taken much longer to complete the journey than would normally have been anticipated. He had taken 2 hours and 38 minutes to go from Tyndrum to Inveraray; a journey which ought to have taken only 36 minutes. His car had used more petrol than might have been expected. When examined, his car had 4 fractures to 3 suspension coils; it being unusual to find even one fracture in a suspension coil of a car subject to ordinary road use. The plastic under-tray had been scraped and vegetation was stuck to the underside. It had clearly been driven off road. The inference to be drawn from that, which the jury were asked to make, was that the deceased had disposed of the body somewhere off the road between Tyndrum and Inveraray. However, no body has ever been found.

[10] A cadaver dog, which is trained to react to the presence of dead bodies, reacted to areas in the basement garage and to a recessed area in the basement near the door leading from the basement to the garage. The dog also reacted to the boot of the car, but no forensic links to the deceased were established.

[11] On the day after his return from Lochgilphead, having given a detailed statement concerning his association with the deceased and his own movements (infra), the appellant consented to be examined by a Forensic Medical Examiner. He had a number of injuries to his forehead, hands and arms. On the back of his right hand and wrist were parallel curvi-linear abrasions, which could have been caused by finger nails. According to a consultant forensic pathologist, such abrasions were a characteristic reaction of a person who was being strangled. On Friday, 7 May, the appellant was taken to police headquarters to have his hands photographed. The photographer noticed that the appellant was wearing make-up on his hands. He was asked to wash his hands before having them photographed again. He was noted not to be drying his hands by vigorous rubbing, despite giving an impression of doing so.

 

The Developing Police Enquiry and the appellant's first statement

[12] In the late evening of Wednesday, 5 May, the police were, as already noted, keen to speak to the appellant. They were expecting him to call at Corstorphine police station at about 9.30 pm on his return from Lochgilphead. They had asked him to come straight there rather than to go home first. When he did not appear, the police had gone to the appellant's house to see if he had arrived there. He had not, although his wife was seen to be at home. At about 10.15, the police contacted the appellant again. He said that he was at Stirling and would be at Corstorphine in about 45 minutes.

[13] At about 10.30 pm, a constable was delegated to go to the appellant's house to check again on whether he had arrived there and, if he had not, to speak to his wife in order to establish his movements over the previous days. This was with a view to exploring the possibility that the deceased was actually with the appellant; the police not being entirely satisfied that the appellant had last seen her on Monday, 3 May. However, there was, according to the uniformed police engaged in the enquiry at that time, no suspicion of a crime focussed on the appellant in relation to the disappearance. There were other lines of enquiry open and to be opened. For example, the police were still to locate and speak to MB.

[14] Once the appellant had arrived at Corstorphine, police officers were instructed to take a statement from him. These were, again, uniformed officers and not criminal investigation department (CID) detectives. The statement (Production 9), which was primarily taken by a police sergeant, is recorded as commencing at 00.05 am on Thursday, 6 May. It was completed at about 10.50 am and signed by the appellant at about 1.00 pm. According to the police, whom the trial judge accepted as credible in this area, it was taken as part of a missing person's enquiry. It was not electronically recorded. Its purpose was to establish the appellant's knowledge of the deceased's whereabouts and the appellant's own movements. No caution was administered, as there was no allegation of a crime. The police information (from the appellant himself on the phone earlier (see supra)) was that the appellant was the last person known to have seen the deceased (on the Monday morning). Accordingly, he may have been able to help find her or had some knowledge of where she was. The police sergeant in charge of taking the statement explained that he wanted to take as detailed an account as he could, as it might throw up a useful line of inquiry. He did not discuss whether the appellant was free to leave the police station. The appellant had been keen to assist the police and had expressed his contentment with remaining in the police station and providing a statement.

[15] The appellant told the police of his relationship with the deceased and what she had told him about, if the appellant were to be believed, her somewhat bohemian lifestyle. At about Christmas 2009, he had decided to end his relationship with the deceased and to return to the bosom of his family. He had not exactly done that, although his relationship with the deceased had become less intense than before and was effectively over by the January. Nevertheless, he said that he had last had sexual intercourse with the deceased about 6 weeks prior to the statement (ie March). By that time, the deceased had told him that she had registered with certain dating agencies and had met other men, including "M" (MB), about a month previously. She had asked the appellant to remove his belongings from her flat. He had gone to her flat on 25 April to do so. Thereafter, he had exchanged e-mails with her about personal matters. They had gone out for a drink on the evening of the Thursday or Friday (29 or 30 April), when she had discussed her relationship with MB and expressed disgruntlement about her work, where she had been passed over for promotion. At the end of the evening, they had then gone their separate ways.

[16] At a later point in his statement, the appellant recalled that he had had some brief text and phone communications with the deceased in the course of the Saturday (1 May) morning and evening. At about 10 pm, he had driven to her flat as she was not responding to texts. Her flat lights were off, so he drove home. On the Sunday (2 May) morning, he had again texted the deceased, asking her if he could visit her later. She had initially replied brusquely that she had a "possible date", but later that day had asked him to visit her. He had done so at about 6 pm. They had gone for a walk up Corstorphine Hill, before returning to the deceased's flat, where the appellant cooked a curry, while the deceased smoked cannabis. They had shared a bed later, although no intercourse had taken place.

[17] The appellant woke up at about 7.30 am on the Monday (3 May). This was a public holiday and the IML office was closed. The deceased had told him to leave; complaining of his lack of commitment to her. He had left at 9.45 am. The deceased had sent him certain texts shortly afterwards, accusing him of using her and messing up her prospects with MB. He had replied "Love you always". That was the last contact which the appellant said he had had with the deceased. The appellant had returned home with a bunch of flowers for his wife, with whom he had a chat and later shared some gardening chores.

[18] The appellant told the police that he had no idea where the deceased might be or why she had gone missing. He provided the police with a relatively long list of people, including past boyfriends, with whom the deceased associated. These included an old friend from Morocco, who had wanted her to be in touch.

[19] On the Monday, the appellant said that he had spent the evening with his wife and had resumed sleeping in the same bed as her. On the Tuesday morning (4 May), his wife had dropped the appellant off at the bottom of Orchard Brae, before going to her work at the Western Infirmary. The appellant had taken a bus the short distance to the West End, where he arrived at about 8.10 am. He had then walked to IML's office, where, he said, he arrived at 8.25 am.

[20] The appellant gave a very detailed account of his precise route to the office and what he had done when he reached there. He had gone straight to his desk and had started up his computer. He had chatted to a couple of his work colleagues, and made some telephone calls. He had been asked for the minutes of the meeting (supra) and had realised that he had left them at home. He had volunteered to go and get them and had left the office to do so at about 11.15 am. He had taken a taxi to his mother's house, as he had also left his keys at home and she had a spare set. When he reached home, he had told his mother that he would take his Vauxhall Vectra back to the office, to avoid her waiting. He had arrived back at the office at about 12.30. He had returned to his car at about 1.30 to retrieve some money, before walking up to Princes Street, where he bought, amongst a few other items, air freshener. He had left the office in his car at about 4.50 pm and driven home. The appellant went on to describe his movements that evening, all of which involved family activities.

[21] The next day (Wednesday, 5 May), the appellant said that he had taken the Vectra into work, but there had been no spaces, so he had parked on Thistle Street. He had spoken to the staff about the Lochgilphead school project as he had intended to go there that afternoon to inspect the football pitches. He had diarised this on the previous Friday. At about this time (9.25 am), he had been informed that the deceased was missing and the police were involved. He had only then realised that he had not seen the deceased on the previous day, although she customarily sat a short distance away from him in what was an open plan office. He had not tried to contact the deceased, because others had said that they had done so. He had gone to several meetings, before leaving the office and heading for Lochgilhead at about 11.30. He had arrived there at about 4.30, when he had noticed the voice mails asking him to contact the police. He had phoned his office and spoken to a policeman for, he thought, more than an hour. By this time, he had also observed that there was something wrong with his car. He had then set off to go to Corstorphine police station as requested, although he seems to have taken an unusual route down the west side of Loch Lomond and then across to Stirling to do so.

 

Further Police Inquiries (and the second and third statements)

[22] A CID officer first became involved, in what was still a missing person inquiry, almost by chance late (11 pm) on Wednesday, 5 May. He had concluded, at about midnight, that there were some strange aspects to the inquiry and "things did not all add up". He had contacted IML staff at about 3 am on Thursday, 6 May, with a view to accessing the office and searching (with a dog) for any signs of the deceased. At about 4 am, the duty Detective Inspector had asked if she could assist. She explained that there was an element of suspicion about whether the appellant had something to do with the deceased's disappearance, but there were other possibilities and no crime had been established.

[23] At about 4.30 am, the appellant's car keys had been obtained from him and, with the appellant's consent, the Vectra, which was in a Tesco car park, was searched at about 4.55 am before being removed to a yard for further examination commencing at about 10.50 am. There had been no consent to the latter procedure, but nothing now turns on that.

[24] The police interviewed MB at about 6 am (on the Thursday), once his address had been ascertained. His house and car were searched with his consent. This was standard procedure as the missing person could just be hiding. His statement, which included references to the deceased's concern about the appellant's behaviour, was reported back to other officers at Corstorphine.

[25] At about 7.00 am, a Detective Chief Inspector was called in to set up a large investigating team. He did not normally become involved with missing person inquiries, but there was a great deal of concern over the deceased's disappearance and he required to consider whether a crime had been committed. The gathering of information was a slow process. As each new piece would come in, he would instruct further action. The court was provided with very little information about when particular pieces of information had been received or considered.

[26] At 11.00 am, the DCI was briefed on what the appellant had said in his statement. He was not happy with certain aspects of the statement. There was an operational briefing of detective officers at 4.00 pm. At 5.35 pm the appellant had been asked by a detective officer if he was happy to stay at the police station. He was told that he did not have to do so and could go home. He said that he was happy to stay and assist with the inquiry. He had agreed to be taken to St Leonard's police station to be medically examined and interviewed further. As the police drove the appellant through the Grassmarket, the appellant had shouted out "There she is", indicating a person who was not the deceased.

[27] The second statement of the appellant (Pro 10) was taken by the detective officer commencing at 6.30 pm at St Leonard's police station. Again, it was not recorded and no caution was administered. The officer explained that the appellant was not suspected of any crime and he was being treated as a witness. At the start of the process, the appellant had acknowledged that he was in the police station voluntarily and was free to stop the taking of his statement at any time and to leave the police station. The appellant consented to the medical examination, having been told that he did not have to do so and could stop it at any time.

[28] At this point the medical examination had been carried out. The Forensic Medical Examiner wrote that the purpose of the examination was, amongst other things, to look for injuries. He noted: "Foul play suspected in disappearance". Once the taking of the appellant's statement had recommenced, he was asked if he had any knowledge of the deceased's whereabouts or the circumstances of her disappearance. He had replied "In short, no. I don't know." He denied having any contact with the deceased after the Monday morning.

[29] The third statement of the appellant (Pro 11) was taken at 11.15 am on 8 May 2010 at the appellant's house. It concerned his home computer and e-mail address. The police had called at his house with a view to obtaining access to his computer and to looking in the garden to see if there was any sign of clearing work which might, as the appellant had previously maintained, have caused the injuries. There was none. The appellant had said that he was happy for the police to access both his computer and the e-mails.

[30] In the afternoon, the DCI was advised of the appellant's application of make-up to his injuries and the absence of any signs of work in his garden which might explain them. In light of that information, the DCI determined that the appellant's status should change to that of suspect, on the view that the police were now dealing with a crime, possibly that of homicide.

Preliminary Objections to the Statements
[31] The appellant challenged the admissibility of the three statements. The contention was that, even by the time of the first statement, the appellant had been a suspect. As such, he ought at least to have been cautioned before being questioned.

At the hearing before the trial judge, which took place in advance of the trial, the police gave evidence, along the lines indicated above, that the appellant had only become a suspect on the afternoon of 8 May as a result of the state of the information at that time.

[32] The appellant gave evidence at the preliminary hearing (although he did not do so at the trial). He explained that he had attended the police station late at night because he had been asked by the police to do so. He had asked how long it would take and was told that it would "take as long as it took". He was told that he could not telephone his wife or work, but that the police could do so. He did not remember being told that he could leave. He had later agreed to the further interview and the medical examination as he felt that he did not have much choice. He had been taken home at about 11 am. The police had turned up the next morning and he had agreed to go to be photographed, again because he had felt that he had no option. He had again gone home, but the police had come back the next morning and he had gone with them for further questioning. The appellant accepted that, on the occasions when he had been in the police station, he had not been happy but had agreed to stay. He had been willing to do so, given the importance of the inquiry. There had been no bullying in the questioning and the police had not been aggressive. He had no complaints about the way in which the questions had been asked.

[33] When it came to submissions, it was accepted on the appellant's behalf that the appellant had not been in legal detention. Nevertheless, under reference to Ambrose v Harris 2012 SC (UKSC) 53, by 4.30 am on Thursday, 6 May, when the appellant had been asked for his car keys, he ought to have been regarded as a suspect. That would have triggered the necessary protections of a caution and legal advice since, by then, he had been subject to significant curtailment of his freedom of action (Zaichenko v Russia, ECtHR, unreported, 18 February 2010 (no 39660/92)). The Crown resisted the appellant's contention of unfairness on the basis that fairness involved considerations of the public interest as well as that of a suspect (Ambrose v Harris (supra), Lord Clarke at paras 119 - 120, approving Miln v Cullen 1967 JC 21, Lord Wheatley at pp 29 - 30).

[34] The trial judge emphasised that the investigation had been an evolving one in which a large number of lines of inquiry were involved against a background of increasing concern for the deceased. He noticed the distinction between being suspicious and these suspicions crystallising on an individual (Miln v Cullen (supra), Lord Wheatley at 29). He held, as a matter of fact, that the police did not have reasonable cause to suspect the appellant of a particular offence as at 4.30 am on 6 May or at any point up until the appellant's status was actually changed. The police would not have been able to inform the appellant of the reasons for any detention under section 14 of the 1995 Act. The trial judge was satisfied that, applying the dictum of Lord Wheatley in Miln v Cullen (supra), the evidence of the statements had been fairly obtained. The trial judge made no finding to the effect that the appellant had had his movements significantly curtailed while at Corstorphine police station. Although the appellant had said that he had not been permitted to phone his wife or his work, there is no indication that the trial judge accepted that. It is not consistent with the appellant being told that he was free to leave.

Motion to Desert the Trial Diet
[35] The parties had agreed that the jury should receive copies of a pathologist's report with the conclusions deleted to omit references said to contain speculation about the deceased's disappearance. The pathologist's evidence had concerned the injuries to the appellant's hands and wrist, which might have been caused by fingernails. There were other marks consistent with being caused by sharp foliage. There were four conclusions, two of which were as follows:

"2. ... some of the abrasion injuries are consistent with fingernail marks from a third party. Such marks could have been sustained in the course of a scuffle, including as a possibility one that was associated with the circumstances giving rise to the disappearance of Miss Pilley.

3. Other marks, mainly to the hands and wrists are consistent with contact with sharp foliage. There's nothing specific about their nature that allows one to determine for instance if they had been sustained in the course of gardening or as a result of passing through foliage in circumstance associated with the disappearance of Miss Pilley. However they would be quite extensive for gardening injuries".

[36] Three unedited copies of the report were given to the jury in error. Although the pathologist gave oral evidence in respect of all four conclusions, his testimony did not cover the italicised sections set out above. The jury noticed the discrepancy in their copies and brought it to the court's attention on the following day. A motion to desert was made, but the trial judge refused that in favour of a direction to the jury to disregard the matters not covered by the pathologist in the witness box.

 

Submissions

APPELLANT

[37] The appellant presented his central argument on the basis that there had been an infringement of his Article 6 right to a fair trial rather than that the statements had been taken unfairly by the police and were therefore inadmissible at common law. He submitted that the trial judge had been in error in holding that, as at Tuesday, 6 May, the police did not have reasonable cause to suspect the appellant of a particular offence and that they would not have been able to inform him of the general nature of that offence. This error was demonstrated by the fact that there had been no material change in circumstances between that date and the time when the appellant's status had been officially changed. It was accepted that the crucial statement was the first one, taken over the period from midnight on Wednesday, 5 May, through to 11 am on Thursday, 6 May.

[38] Although the dividing line beyond which a witness became a suspect was a "fine one", and general principles of fairness had a bearing upon it, nevertheless the appellant had been a suspect by the time the first statement had been taken. That was so even if the general nature of the offence of which he was suspected may have been rather more vague than the eventual libel. The appellant could have been detained for abduction in terms of section 14 of the 1995 Act, where the requirement was only to specify "the general nature of the offence". Although it was accepted that the appellant had agreed to assist the police, that consent did not relieve the police of the obligation to caution a suspect before questioning him. It was not argued at the appeal that the circumstances involved such constraint that the appellant ought to have been given access to a lawyer.

[39] Contrary to the trial judge's views, the whole circumstances ought to have been considered, with the benefit of hindsight, when deciding whether someone had become, or ought to have been treated as, a suspect (Ambrose v Harris (supra), Lord Hope at para 62). On such a consideration, a person may become a suspect, and thus be entitled to the rights implicit in Article 6, at least to the extent of a caution being required, even if there was insufficient information to justify detention (ibid, Lord Hope at paras 67-69). There were a number of significant factors which pointed towards the appellant being regarded as a suspect, not least the involvement of CID officers at an early stage. Leaving aside the immediately known facts, the early investigation quickly reduced the likelihood of any legitimate explanation existing for the disappearance of the deceased. The circumstances were suspicious from a very early stage. It was necessary to consider the realities of the situation (Artico v Italy (1981) 3 EHRR 1 at para 33).

[40] Ambrose v Harris (supra) made it clear that the rights implicit in Article 6 became active in stages. The first of these stages involved the caution. That stage occurred as soon as Article 6 became engaged. It could occur before the point of detention or arrest, since Article 6 afforded rights to those who had been "charged" with a criminal offence (Imbrioscia v Switzerland (1994) 17 EHRR 441 at para 36; Zaichenko v Russia (supra) at para 42; and Serves v France (1999) 28 EHRR 265 at paras 40-42). The word "charge" had been defined as being "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence" and this corresponded to the point when "the situation of the suspect has been substantially affected" (Deweer v Belgium (1980) 2 EHRR 439 at para 46; Eckle v Germany (1983) 5 EHRR 1 at para 73; Burns v HM Advocate 2010 SC (PC) 26). A substantive, rather than a formal approach, was required (Subinski v Slovenia, ECtHR, unreported, 18 January 2007, (no. 19611/04), at paras 62-63; Foti v Italy (1982) 5 EHRR 313 at para 52). A suspect's position was substantially affected as soon as the suspicion against him was being seriously investigated and the prosecution case compiled (Ambrose v Harris (supra) Lord Hope at para [62]). A person was the subject of a "charge" when a preliminary investigation had been opened and the person, although not under arrest, had officially learned of the investigation or had begun to be affected by it. The relevant moment may be the first interrogation, or interview, by the police (Howarth v United Kingdom (2000) 31 EHRR 861, at para 20; Martins and Garcia Alves v Portugal, ECtHR, unreported, 16 November 2000, (no. 37528/97), at paras 19-20; Kangasluona v Finland, ECtHR, unreported, 20 January 2004, (no. 48339/99), at para 26; and Yankov and Manchev v Bulgaria, ECtHR, unreported, 22 October 2009, (no. 27207/04), at paras 18 and 24).

[41] The obligation to caution a suspect existed from the time at which the police ought to have suspected the person (Zaichenko v Russia (supra) at para 42; Ambrose v Harris (supra), Lord Hope at para 67). Such an approach ensured fairness to a suspect, when otherwise matters might be governed by the subjective views of the relevant police officers. Although these views may be taken into account, they could not be determinative.

[42] The trial judge had accepted that the statements were mixed. On that basis, there must have been aspects which could be considered incriminating. Indeed, the Crown had relied on such aspects to undermine any suggestion that the appellant had not been involved in the disappearance of the deceased. In a circumstantial case, the addition of such pieces of evidence, especially when they came from the mouth of a suspect, was likely to be given significant weight by a jury. The defence would have been better having a blank sheet at the trial rather than the content of the statements.

[43] In relation to the motion to desert the trial, the parts in italics in the conclusions of the pathologist's report would have been inadmissible. They were purely speculative and strayed significantly into the province of the jury (see Hill v HM Advocate 2005 JC 259, Lord Macfadyen delivering the Opinion of the Court at para [25]). Although the trial judge had given the jury a direction at the time when the error had been drawn to his attention, he did not repeat that warning when he came to refer to the pathologist's evidence in his charge. In these circumstances, where inadmissible evidence had gone before the jury, the appropriate remedy depended upon the likely impact of the evidence and whether the jury could reasonably be expected to put it out of their minds following upon a judge's directions (Fleming v HM Advocate 2005 JC 291, LJC (Gill), delivering the Opinion of the Court, at para [33]). The only safe course in the present case was to have deserted pro loco et tempore (see Platt v HM Advocate 2000 JC 468).

 

RESPONDENT

[44] The Crown maintained that the trial judge had not erred in admitting the evidence of the statements, even although the appellant had not been cautioned. The police had been making enquiries into the disappearance of a 38 year old woman, who had been in a relationship with the appellant. As at 6 May, there was no known crime to investigate. The appellant may have been the last person to have spoken to the deceased and it was obvious that he would have been able to contribute to the information obtained by the police who were, at that stage, primarily concerned with locating her. The appellant had not been a suspect but a significant witness..

[45] Whether the appellant was a suspect was a matter of fact. The trial judge had heard evidence at a preliminary hearing in relation to this matter and had held that the police had no reason to suspect the appellant of a particular offence, nor would they have been able to inform him of the general nature of the offence of which he might have been suspected. In such circumstances the appellant was not a suspect (cf HM Advocate v Rigg 1946 JC 1, LJC (Cooper) at 3). The police had been at the stage of taking statements and the appellant was not the sole person whom the police had to speak to (see Brown v HM Advocate 1966 SLT 105, LJG (Clyde) at 108). There was nothing to suggest that the police had, at the time of taking the statements, sufficiently focussed their enquiries upon the appellant as would have rendered him a suspect for murder (Ross v HM Advocate 2012 SCCR 500, LJG (Hamilton), delivering the Opinion of the Court, at para [30]). The absence of a caution did not make the statements inadmissible (McPhee v HM Advocate 1966 SLT (Notes) 83).

[46] The trial judge had been best placed to assess the facts, having heard the evidence given. It could not be said that he had reached a decision which no reasonable first instance judge could have taken (Lawson v Procurator Fiscal, Falkirk (2009) SCL 1205, Lord Osborne, delivering the Opinion of the Court, at para [14]). Even if the appellant had been a suspect, there was no absolute rule of law which required that such a suspect always be cautioned before questioning. The issue in each case was whether what had happened had been unfair to the appellant (Pennycuik v Lees 1992 SCCR 160, LJG (Hope) at 165-166). There was no requirement either that the appellant be provided with any legal assistance, given that his freedom of action had not been significantly curtailed. He was not in custody. Applying the test in Ambrose v Harris (supra) the police had not been compiling a case against him.

[47] The circumstances in which the statements had been obtained had not been unfair. The questioning had not been designed to elicit admissions of guilt and there was no suggestion of any threats having been made, or any inducements or undue pressure having put upon the appellant. Fairness had to be viewed not just in respect of the appellant's rights but also in relation to the public interest, the ascertainment of truth and the need to detect and supress crime (Miln v Cullen (supra), Lord Wheatley at 26). There had been no unfairness to the appellant and no breach of his Article 6 rights.

[48] In any event, there was a clear sufficiency of evidence even without the admission of the statements. There was no real possibility of a different verdict being reached, had the jury not had the statements before them (Cadder v HM Advocate 2011 SC (UKSC) 13, Lord Hope at para 64). It was on the evidence as presented at the trial that the court had to concentrate, rather than as it might have been presented (Fraser v HM Advocate 2011 SC (UKSC) 113, Lord Hope at para 38).

[49] The trial judge had not erred in refusing the appellant's motion to desert the trial following upon the error in allowing the full report of the pathologist to go before the jury. Once the error had been brought to the attention of the court, it was immediately and appropriately dealt with by the trial judge, with the jury being specifically directed to put out of their mind any information beyond that spoken to by the pathologist. A jury was deemed to follow the directions of the trial judge (McIntosh v HM Advocate (No.2) 1997 SLT 1320, LJC (Ross) at 1324). The direction given had been a specific one and the jury had therefore been aware of what evidence was properly before them for consideration (Lyttle v HM Advocate 2003 SCCR 713, LJC (Gill), delivering the Opinion of the Court, at para 22). The trial judge had been entitled to make no further reference to the matter so as to avoid the risk of any confusion. Again, there was no real possibility of a different verdict being reached by the jury, if the error had not been made (Summers v HM Advocate [2012] HCJAC 43, Lord Bonomy, delivering the Opinion of the Court at para [14]). No miscarriage of justice had occurred.

 

Decision

[50] The appellant's contention is that the first statement taken from him breached his right to a fair trial under Article 6; notably his implied right to silence and his privilege against self incrimination. The court has not been told of how this statement was taken in practical terms, but it assumes that notes were taken in stages over the course of the night and that eventually the totality was compiled into a witness statement by the police, which the appellant was then asked to sign. As already noted, the court has not been given any form of time line in relation to the receipt and consideration of pieces of information and these being taken into account in any questioning of the appellant. It has no indication of when, in the course of the night, the appellant made a particular statement about an element of the inquiry.

[51] In order to succeed with his argument under Article 6 at the appellate stage, the appellant requires to demonstrate that, at the time of the taking of the statement, the appellant had been "charged" with a criminal offence, as that word "charged" is autonomously interpreted in the Convention jurisprudence. This is simply because Article 6 is expressly only engaged once a person has been so charged. As is well established, it is not necessary that the person has had a formal charge laid against him by the police or prosecuting authorities. It is sufficient if "a preliminary investigation has been opened in his case and, although not under arrest, the applicant has officially learned of the investigation or has begun to be affected by it" (Kangasluoma v Finland, ECtHR, unreported, 20 January 2004, (no 48339/99) citing Corigliano v Italy (1983) 5 EHRR 334). It is axiomatic that such a person must be a suspect.

[52] There are certain obvious events which carry an implication that a preliminary investigation has been opened against a suspect. These include his arrest or his detention under section 14 of the Criminal Procedure (Scotland) Act 1995. In these situations, the suspect will have been told of, respectively, the charge against him or the general nature of the offence of which he is suspected. However, Article 6 rights can also attach to a suspect before he has had his liberty restricted in this manner. Thus a person stopped at a police check point and found with suspected stolen goods will attract Article 6 protection to the extent of requiring a caution (but not necessarily access to a lawyer) before being questioned. This was the outcome in Zaichenko v Russia, ECtHR, unreported, 18 February 2010, (no 39660/02) (at para 42), which followed the earlier dicta in Eckle v Germany (1982) 5 EHRR 1 (at para 73) and Deweer v Belgium (1980) 2 EHRR 439 (at para 46) to the effect that it was sufficient that the suspect's situation was "substantially affected".

[53] This approach was adopted by Lord Hope in Ambrose v Harris 2012 SC (UKSC) 53 (at para [44]). In looking at what those words meant, Lord Hope concluded (para [62]):

"His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled (Shabelnik v Ukraine [2009] ECHR 302 at para 57)" (emphasis added).

Citing Corigliano v Italy (supra) and Eckle v Germany (supra), Lord Hope continued by stating that a charge could be held to have been proffered, for the purposes of Article 6, if "other measures which carry the implication of ...an allegation" have been made. A substantive, rather than a formal, approach should be taken (Šubinski v Slovenia, ECtHR, unreported, 18 January 2007 (no 19611/04) at paras 62 - 63).

[54] When a suspect is being "interrogated" in relation to an offence, that too will normally carry with it an implication that an investigation has been opened and the prosecution case is being compiled. This will certainly be the case when, even if the suspect is not in custody and the questioning is limited in scope, the purpose of the exercise is to extract an admission (Lord Hope, ibid at para [65]). On the other hand, as Lord Hope was at pains to point out: "questions that the police need to put simply in order to decide what action to take with respect to the person whom they are interviewing are unlikely to fall into this category" (ibid). This links to what Lord Hope had said earlier (para [63]) that:

"The moment at which the individual is no longer a potential witness but has become a suspect provides as good a guide as any as to when he should be taken to have been charged for the purposes of Article 6(1) (Shabelnik v Ukraine, [(supra)] para 57)".

 

[55] In relation to the administration of a caution, this appears, quantum valeat, to be the same test as has existed for many years in Scots criminal law. Although the overarching test in relation to the admissibility of statements by accused persons is one of "fairness", it is well established that this normally requires that a person in the category of a "suspect" must be cautioned before being questioned by the police about the offence of which he is suspected (see eg Tonge v HM Advocate 1982 JC 130, LJG (Emslie) at 139-140; McLean v HM Advocate 2010 SCCR 59, LJG (Hamilton) delivering the Opinion of the Full Bench, at para [27])). This encapsulates the modification, developed in Miln v Cullen 1967 JC 21, of the former prohibition on questioning of a suspect suggested by some of the dicta in Chalmers v HM Advocate 1954 JC 66 (eg LJC (Thomson) at 81-82).

[56] It is not necessary to conduct empirical research into the "fairness" of the circumstances in every case, balancing the individual interest with that of the public (cf Ambrose v Harris (supra), Lord Clarke at para [119] citing Lord Wheatley in Miln v Cullen (supra) at 29-30). Indeed, that may be problematic in the modern era, where the emphasis is on the courts enforcing an individual's human rights as defined by the European Convention. This is distinguishable from the common law approach of protecting individuals from the excesses of police powers. However, whether that is so or not, it is sufficient in this case to notice that, if the appellant fell into the category of suspect when his first statement was being taken, that statement (and those which followed) ought to have been excluded from evidence in the admitted absence of a caution.

[57] The issue then becomes one of whether, during the taking of the first statement, the appellant was a suspect. Of course, it is possible, like the fictional detective, to suspect everyone and to suspect no one at the same time. When the deceased had been absent from work for two days, it could be said that almost everyone in her immediate social and work circle may have fallen under suspicion in a very general sense in the mind of the worldly wise detective. However, the law does not require every such person to be cautioned before being asked questions by the police. What is meant by "suspect" in this context is a person "in a substantial sense under suspicion as the possible perpetrator" of the crime (HM Advocate v Rigg 1946 JC 1, LJC (Cooper) at 4). Put in a slightly different way, albeit by the same judge, it is a person upon whom suspicion has "centred... as the likely perpetrator of the crime" (Chalmers v HM Advocate (supra), LJG (Cooper) at 78). It is only once a person has been identified as the possible or the likely perpetrator, that there can be any question of the compilation of a prosecution case against him. Until then, the police will generally be engaged in the investigative rather than the prosecution process.

[58] Although, in Miln v Cullen (supra, at 30), Lord Wheatley may have viewed the issue of whether a person was a "suspect" as being a subjective one, which depended upon the attitude of the police at the time, he did qualify that by stating that the police attitude may require to be justified by reference to the facts in their possession. Such an approach, again, is in tune with the common law idea that, in this area, the courts are concerned with the control of police powers. Thus, what is of particular importance is whether the police are acting in good faith when questioning a person, whom they say was properly categorised as a witness rather than a suspect. However, if the matter is regarded from the different angle of the protection of a person's Article 6 rights, it must be the case that the mindset of the police, or a particular constable, cannot be determinative. The court may require to look at all the circumstances, including what occurred after the relevant statement, and decide whether, with hindsight or otherwise, the person ought to have been treated as having been "charged" because of the degree of suspicion which, objectively assessed, had attached to him. If, in reality, what was happening was the compilation of a case against him, that person would require to be cautioned before being questioned, if his answers are to be lawfully admitted in evidence. In looking at these issues, the fact that the court accepts that the police were acting in good faith and that the officers concerned did not, in fact, regard the person as a "suspect" will be an important, but not decisive, consideration.

[59] The question of whether the stage has been reached, whereby a case is being compiled against a suspect rather than the individual being questioned as a witness in the context of an ongoing investigation, remains one of fact. As such, it is primarily a matter for the judge of first instance to determine. Although his decision can be reviewed on appeal, due respect has to be given to the advantage which that judge has had in seeing and hearing the witnesses giving evidence. He will have gained an impression in relation to the state of the police enquiry which is likely to be a clearer one than that available to an appellate court. However, he is not taking a discretionary decision and it is not necessary for the appellate court to categorise his decision as "unreasonable". His decision is one involving the exercise of a judgment in determining whether the investigative stage has passed. His decision will be reversed if, upon the central facts found, the appellate court considers that the wrong view has been taken even if the finding of these facts remains primarily a matter for the first instance judge, subject to review on conventional grounds.

[60] The trial judge, having heard both the police officers and the appellant at the preliminary hearing stage, determined that, when taking the statements, the appellant was not in the category of a person suspected of having committed a particular crime or, indeed, crimes. The court considers that he was well entitled to reach that view upon the facts which he found. At the time of the first statement, the police had only made general enquiries about the deceased's whereabouts. The matter was being dealt with by uniformed officers and not by the CID, who might have been expected to be called immediately if foul play had immediately sprung to mind. The police had spoken to the appellant on the telephone and he became, at that point, the last person known to have seen the deceased on the Monday morning. Even that would change once the CCTV footage had been studied and it was realised that the deceased had been very much alive on the Tuesday morning. Once MB had been interviewed at 6 am, it would have been realised that he, rather than the appellant, had been the last known person to have contact with the deceased before she set off for work on the bus.

[61] As the trial judge has explained, the enquiry was an evolving one with several different strands of investigation cropping up and being dealt with. There was a myriad of possibilities about what might have happened to the deceased ranging from her taking her own decision to disappear from the immediate view of her friends and family to foul play on the part of one of her friends or family or a stranger encountering her before she reached the Thistle Street entrance to her office. In all these circumstances, the court does not consider that, at the time of his first statement, the appellant was under suspicion of being the possible or likely perpetrator of a crime against the deceased to such an extent that the police had begun to compile a case against him. His Article 6 rights had not therefore been engaged at that time and the principal ground of appeal must fail.

[62] Although the appellant has a stronger case that these rights might have been engaged by the time of his medical examination, given that it is accepted that the first statement is the crucial one, the court will not attempt a separate examination of the circumstances applying at the time of the second and third statements.

[63] The court has had little hesitation in determining that, even if the statements had been ruled inadmissible, there is no real possibility that the jury would have reached a different verdict (Cadder v HM Advocate 2011 SC (UKSC) 13, Lord Hope at para [64] applying McInnes v HM Advocate 2010 SC (UKSC) 28). In that regard, it is on the case which was presented at the trial that the court must concentrate (Fraser v HM Advocate 2011 SC (UKSC) 113, Lord Hope at para [38]). If the statements, and in particular the first statement, had not been adduced in evidence, the appellant would effectively have had no defence at all to the Crown case other than to rely on the presumption of innocence. The case against him would have been overwhelming. There would have been evidence of: (a) the turbulent nature of his relationship with the deceased, involving intense jealousy in the context of expressed views from the deceased that their relationship was at an end; (b) the proximity of the arrivals of the deceased and the appellant at 11 Thistle Street on the morning of the disappearance; (c) the undoubtedly sinister cessation of text messages between the appellant and the deceased at about the time of her disappearance; (d) the appellant's strange demeanour on the morning of the disappearance and his sudden departure to collect his car on the pretext of having lost the minutes; (d) the cadaver dog's reaction to his car; (e) most significant, the state of the appellant's car upon his return from an unexpectedly long and sudden trip to Lochgilphead; and (f) the injuries on his hands, which he tried to conceal and which were characteristic of a reaction of someone being strangled.

[64] Were the statements to have been excluded, this evidence would have created a compelling, if not irresistible, case against the appellant. Excluding the statements would have made matters much worse for him. In that regard, the court notes that he was content to rest his account upon these statements rather than to give evidence at the trial. Although the trial judge classified the statements as "mixed", perhaps for understandable reasons of erring on the side of caution (see Jamieson v HM Advocate [2011] HCJAC 58), it is difficult to see what there is of an incriminating nature in them. This applies especially to the first statement in which the appellant gave a clear account of his movements coupled with a firm denial that he had seen the deceased after he had left her on the Monday morning. There was little, if anything, of significance in the statement which was capable of being directly contradicted by evidence led in the course of the Crown case. In short therefore, the court considers that the admission of the statements as evidence can only be regarded as having been advantageous to the appellant. His position would have been considerably weaker had they not been put before the jury. In these circumstances, the court considers that no miscarriage of justice has occurred by virtue of their admission.

[65] The court does not consider that the practical error by the Crown in supplying the jury with three unedited versions of the pathologist's report could have had any bearing on the outcome of the trial. The court does not consider that the matters stated in italic could have had any material influence upon the jury. Indeed, what is stated in italic appears to be inevitable conclusions from what is said elsewhere in the report. Although it was, of course, technically for the jury to consider whether any link between the injuries and the disappearance had been proved, and not for a pathologist to comment on what were unknown circumstances surrounding that disappearance, the Crown theory on the disappearance would have been clear to the jury. If the jury accepted the pathologist's opinion on the cause of the injuries (ie fingernails), what was stated in italics would be an obvious inference to draw.

[66] The appeal is refused.